Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES
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GESERAL April 16,1992
Honorable Dan M. Boulware Opinion No. DM-105
District Attorney
Johnson and Somervell Counties Re: Whether the Texas Commission on
Johnson County Courthouse Law Enforcement Officer Standards and
Clebume, Texas 76031 Education exceeded its rulemaking
authority in promulgating title 37, section
211.80(a)(l) of the Texas Administrative
Code (RQ-293)
Dear Mr. Boulware:
You ask about the validity of title 37, section 211.80(a)(l) of the Texas
Administrative Code a regulation through which the Texas Commission on Law
Enforcement Officer Standards and Education (hereinafter the commission)
requires an applicant for a license as a peace officer, a reserve, an armed public
security officer, or a jailer to be a citizen of the United States of America. You urge
that the commission has exceeded its authority to promulgate rules under section
415.010 of the Government Code, which grants the commission rulemaking power.
We conclude that in this circumstance, the commission has exceeded its rulemaking
authority.
The determining factor in answering the question of whether a particular
administrative agency has exceeded its rulemaking power is whether the rule is in
harmony with the general objectives of the statute which grants that agency
rulemaking power. Gersr V. Oak CZijfSm. & Loan Ass’n, 432 S.W.2d 702 (Tex.
1968); Attorney General Opinion JM-609 (1986); see aLro Attorney General
Opinion DM-68 (1991) (administrative agency may not impose restrictions that are
inconsistent with its statutory powers). Section 415.010(10) of the Government
Code authorizes the commission to
establish minimum standards relating to competence and relia-
bility, including educational, training, physical, mental, and
p. 528
.,
Honorable Dan M. BouIware - Page 2 W-1 05 )
moral standards, for licensing as an officer, county jailer, or
public security officer.’ (Footnote added.)
Under this provision, the legislature has granted the commission the discretion to
establish minimum standards for licensing certain law enforcement officers. This
discretion is not unbridled; the standards must relate only to an applicant’s com-
petence and reliability. Furthermore, section 415.010 lists education, training, phy-
sical and mental health, and moral character as matters the legislature considered
pertinent to an applicant’s competence and reliability as an officer, county jailer, or
public security offrcer.
In order to determine whether in promulgating title 37, section 211.80(a)(l)
of the Texas Administrative Code2 the commission has exceeded its rulemaking
authority, we must determine whether the citizenship requirement harmonizes with
the legislative directive of section 415.010 of the Government Code that the com-
mission establish standards relating to competency and reliability. See Gent. Sec-
tion 415.010 does not expressly include citizenship in its list of matters bearing on an
applicant’s competence and reliability. Until 1981, the commission’s authorization
to establish standards for the employment of peace officers expressly included
citizenship as a matter relating to the competency and reliability of peace officers.3
See Acts 1981, 67th Leg., ch. 699, 5 1, at 2613 (former V.T.C.S. article 4413(29aa),
section 6(c), repealed by Acts 1987,7Oth Leg., ch. 147, 5 6(a), eff. Sept. 1, 1987, see
now Government Code chapter 415). In 1981, citizenship was omitted from the list
‘Because of the definitions of ofticer, county jailer, aod public security officer, found in
sections 415.001(2), (4) - (7) of the Government Code, the law enforcement positions listed in section
415.010 of the Government Code correspond to the offken named io title 37, section 211.80(a)(l) of
the Texas Administrative Code: peace officer, reserve, armed public security ofker, and jailer.
%bis rule was adopted to be effective October 19.1983.
tie predecessor statute of section 4i5.010 of the Government Code, former article
44l3(29aa), section 2(b), V.T.C.S., did not iodudc the citizenship language; rather it authorized the
commission to ‘[elstablish minimum educational, traioiog, physical, mental and moral standards for
admiiioo to employment as a peace offker. . . .’ Acts 1975,64th Leg., cb. 549,s 1, at 1809. Section
6(c) of former article 44l3(29aa), V.T.C.S., where we find the citizenship language, thus provided
additional authority for the commission to establish rules regarding the employment of peace ofkers.
p. 529
Honorable Dan M. Boulware - Page 3 (DM-105)
of matters relating to the employment4 of competent and reliable peace officers
about which the commission may establish rules. See H.B. 2236, Acts 1981, 67th
Leg., ch. 757, 5 3, at 2794-95.
We think this omission is a clear indication of the legislative intent that
citizenship not be a qualification for a competent and reliable law enforcement
officer. The legislature has withdrawn from the commission the authority to
establish a rule requiring that an applicant for a license as a peace offker, reserve,
armed public security officer, or jailer be a citizen of this country. See Stute v.
Jackron, 376 S.W.Zd 341 (Tex. 1964). The authority of the commission to establish
rules about competent and reliable law enforcement officers pursuant to section
415.010 of the Government Code does not include the authority to establish United
States citizenship as a requirement for the licensing of these officers. Therefore, the
citizenship requirement of title 37, section 211.80(a)(l) of the Texas Administrative
Code is not in harmony with the legislative intent of section 415.010 of the
Government Code. See Gersr.
Thus, we conclude that by promulgating title 37, section 211.80(a)(l) of the
Texas Administrative Code the commission has exceeded its statutory authority.
See, e.8, Berar County Bail Bond Bd v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.--
San Antonio 1980, no writ) (rules adopted by administrative agency may not impose
additional burden or condition in excess of or inconsistent with statutory provisions).
SUMMARY
The Texas Commission on Law Enforcement Officer Stan-
dards and Education is not authorized to promulgate title 37,
section 211.80(a)(.l) of the Texas Administrative Code, a rule
‘Both provisions in the prior law, sections 2(b) and 6(c) of former article 44l3(29aa), V.T.C.S.,
granted the commission the authority to establish rules regarding the employment of peace offkers, as
distinguiied from the licensing of certain ofkcrs. Section 415.010 of the Government Code and title
37, section 211.80(a)(l) of the Texas Administrative Code, at issue here, are about the licensing of
certain Lawenforcement oflkrs. Since employment as a law enforcement oflicer is conditioned upon
obtaining the appropriate license, see Gov’t Code S4lS.O51(a), we think the distinction bctwecn
licensing and employing a law enforcement oft&r is not important for purposes of inquiring into the
intent of the legislature in granting the commission the authority to promulgate rules pertaining to the
qualitkatiolls of competent and reliable law enforcement officers.
p. 530
Honorable Dan M. Bouhvare - Page 4 (DM-105)
which requires an applicant for a peace officer, reserve, or jailer
license to be a United States citizen.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Kay H. Guajardo
Assistant Attorney General
p. 531